Interim order

Abstract: In the 2008 Olivia Road case, dealing with housing rights, the South African Constitutional Court handed down an interim order designed to ensure that the parties “engaged with each other meaningfully on certain issues.” Many of the issues between the parties were resolved through this engagement. And concerns about the constitutional and institutional limits of the judicial role were addressed by the fact that the state was a cocreator of the agreement. But in the more recent Joe Slovo decision, the Court ordered eviction in the context of a seriously flawed governmental approach to engagement with the affected community. In this article, I argue that meaningful engagement may be viewed as a tangible expression of a deliberative version of judicial review and that it is potentially a very useful means of implementing social and economic rights while preserving the democratic legitimacy of legislative bodies. However, the South African cases also raise a number of concerns to be borne in mind by those attempting to use meaningful engagement to drive social and economic rights adjudication forward.

Abstract: KIE: The Civil Division of England's Court of Appeal overturned the lower court's order of mechanical ventilation for a profoundly handicapped sixteen-month-old child against the clinical judgment of the child's doctors. Since hitting his head in a fall at age four weeks, J had not mentally developed past that time and he was blind and he suffered from severe cerebral palsy and epilepsy. He required nasogastric tubal feeding and, although he occasionally responded to sound, whether or not he recognized his caregivers was uncertain. His divorced mother and the local authority shared parental authority over J, who resided with foster parents. The consultant pediatrician reported that if J were to suffer a life-threatening event, ordinary resuscitation, antibiotics and physiotherapy would be appropriate, but intervention with intensive measures including mechanical ventilation would be medically inappropriate. Two other specialists agreed with those findings, but another consultant found mechanical ventilation not to be cruel and thought J could be weaned from it if it became so. The mother and local health authority asked the court to require the health authority to continue all treatment, including mechanical ventilation, of J. The Official Solicitor and the health authority opposed such an order. The lower court granted an interim order requiring mechanical ventilation if necessary over the five weeks prior to the main hearing. The appellate court viewed such an order as an abuse of judicial power and held that the physician's duty to the patient is to treat with the necessary consent in accord with the best clinical judgment and that, as long as those with parental authority consent to J's treatment by the health authority, he must be treated in accord with the best clinical judgment of that authority's personnel.

Abstract: Since the explosion of literature on mental capacity in the late 1990s, health care lawyers, clinicians and ethicists have sought to grapple with the difficult question of when and in what circumstances a person ought to be allowed to refuse medical treatment. Much less discussed, but of equal significance, is the circumstances in which an individual ought to be allowed to refuse social care, whether that be in the form of personal care services, or more structured community care provision (e.g. supported accommodation). These issues demand equal consideration and concern in the light of shifting, and potentially conflicting, policy agendas of empowerment and protection. On the one hand, service users are empowered to take responsibility for the provision of care services (e.g. through the direct payments scheme) or supported to contribute decisions made about their care (e.g. under the Care Programme Approach). At the same time, services are required to implement safeguards to protect vulnerable adults from abuse and exploitation. The tensions generated by these policy goals are not new, nor are they irresolvable in all situations yet their effects have been thrown into sharp focus in the light of findings from serious case reviews concerning the abuse and neglect of apparently vulnerable adults who had apparently �€˜refused�€™ social care interventions. Such reports have prompted questions over the legal basis of such refusals of care and the appropriateness of forsaking adult protection interventions in favour of respecting individual choice. The case of Re F provides a timely opportunity to explore these tensions in a legal context. Ostensibly the case concerns the evidential threshold of incapacity required by law in order to trigger an application to the Court of Protection. The case is also significant, however, for its exploration of how capacity to make social care decisions may be assessed and how the courts deal with the issue of refusing care. F�€™s diagnosis �€“ a dissociative disorder of movement and a somatisation disorder �€“ resulted in her spending considerable amounts of time in bed, unable to move. F was described as uncooperative and antagonistic, causing considerable difficulties in providing the nursing care she required. In consequence of her refusal to engage with staff, the provision of care was reduced to a �€˜minimum�€™ level of care, three times a day for 45 minutes at each episode. F was treated by the local authority as a person with capacity and so her decisions to refuse care were respected. Notwithstanding this, the Authority remained concerned about F�€™s capacity. F�€™s father, acting as F�€™s litigation friend, sought a declaration from the Court of Protection concerning F�€™s capacity to refuse care. Regrettably, the Court was provided with rather limited written evidence of F�€™s capacity. A solicitor had previously met with F when F had sought to instigate legal proceedings in respect of her care. He concluded that she lacked capacity to instruct him, his view being premised on the fact that F did not appear to �€˜�€�appreciate the complexities of her position�€™. A neuro-psychologist, to whom F had been referred previously for a �€˜brief�€™ consultation, was �€˜inclined to think it on balance more reasonable to retain the presumption of capacity�€™ in respect of her decisions around the provision of care. DJ Jackson considered this evidence on November 27 2008 and declined to make any interim orders or directions relating to the psychiatric examination of F. She concluded that the evidential threshold required by s 48 had not been met. In her view, such orders or directions could not be made unless there was sufficient evidence that the presumption of capacity, enshrined in the Act, had been rebutted. F appealed, arguing that the judge had erred in requiring a rebuttal of the presumption of capacity before the Court�€™s jurisdiction could be engaged. In the meantime, F cooperated with an independent psychiatric report, which concluded that she lacked capacity to make decisions about her care. In consequence, the local authority and F�€™s father applied to the Court of Protection, which granted an interim declaration that F lacked capacity in this respect and an interim order that the care plan drawn up by the local authority be implemented in F�€™s best interests. On May 28 2009, Judge Marshall QC confirmed the orders as to F�€™s incapacity and the implementation of the care plan. She then moved on to consider the appeal against the evidential threshold required by the Act to engage the Court�€™s jurisdiction.

Abstract: This chapter has one basic purpose: to illustrate how courts could be used in the context of the right to food. Despite the fact that most constitutions of the world make reference to the right to food, there are only a few instances where these provisions have been employed judicially (FAO 1998, 2004). The right to food litigation in the Supreme Court of India is among the most significant litigations on this subject. This study begins by examining it in detail. The case is subsequently used to discuss the right to food, a rights-based approach in general and the role of courts in a rights-based approach.